Predictably enough…

May 31, 2009 – 3:55 pm

By Legal Eagle

President Obama has appointed Sonia Sotomayor to the US Supreme Court to replace David Souter. Predictably enough, elements in the Republican Party have questioned her appointment. The criticisms are not of her gender and ethnicity per se, but of certain comments she made at a talk in 2001 about the gender and ethnicity of judges:

Newt Gingrich, the Republican former speaker of the House of Representatives, and Karl Rove, George Bush’s chief strategist, have called Ms Sotomayor “racist” and said she should withdraw as a nominee over comments she made in 2001.

In a talk at the University of California, she offered the view that a female Hispanic judge would better understand certain issues around race and gender than a white male.

“I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said.

“Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.”

As discussed in my previous post on the lead-up to Ms Sotomayor’s appointment, difficulties arise when diversity becomes a specific criterion for appointment, because suddenly gender, ethnicity and sexuality of appointees become open to attack. On the other hand, I do think diversity in the ranks of the judiciary is a Good Thing because justice looks more impartial if there is a range of different people who do the judging, not just a particular cadre of individuals of a particular gender, ethnicity, religion or sexuality.

Despite my support of a diverse judiciary, I am really wary of claims that women, members of ethnic or religious minorities or non-heterosexual judges are necessarily better than others. In fact, sometimes I think there’s an assumption that just because a person is a member of a minority group this means that person is a better or more worthy person. Not so. It can give you insight in what it is like to be marginalised or disempowered, and make you want to strive for greater justice and equality in society, but this is not a fait accompli. Equally well, a person from a non-minority group may equally well wish to strive for greater justice and equality in society, just because that person is fundamentally decent.

Some of my worst experiences of discrimination in the workplace on the basis of my gender or my choices with respect to childbearing have been at the hands of other women. I had foolishly thought these women would be on my side because they had children and knew what it was like to juggle everything. No. Their experience of struggle and adversity had just made them harder and more unforgiving of others: I managed to do it without help, why should this woman be any different?

As I’ve explained before in relation to arguments that women make better judges, I do think women generally think differently to men. Of course one’s religion, ethnicity, sexuality, upbringing and class all contribute to one’s view of the world and the way in which one judges others. This doesn’t mean a person’s judgment is necessarily better, it’s just different. But that different perspective more truly reflects the society we have (which is made up of an enormous variety of people).

So Justice Sotomayor is not necessarily better than a white man at being a judge. She’s just different. But that difference is a good thing in itself because there is more chance of a fair outcome if diverse opinions are sought from a range of society.

13 Comments

I think there’s also clearly the issue that justice must be seen to be done. For those women, or those who have simply experienced a life very different from the dominant professional group (at least one out of: anglo, middle-class, male), justice can only be legitimate if there is a sense that someone can truly empathise with their situation, can truly hear their voice.

Studies have shown that client satisfaction with lawyers and legal services does not go hand in hand with success or failure of the client’s case. It comes from feeling heard.

For wealthy clients, this means all the brass knobs and hoo ha that goes with big law firms. But for the poor or ethnic… or for many women… this means empathy. Not necessarily sympathy, but someone hearing what you have to say and taking it seriously.

Perhaps having a range of judges can help the small community on the supreme court have more empathy for these people. But at the least, it improves the view of justice in the community.

Ceecee, I would agree totally. A court case is called a ‘hearing’ and there’s a reason for that. It is (or should be) a chance for you to present your side of the story to the judge. You tend to feel a lot less aggrieved if you think someone is listening to you, and understands what your problem is. That goes for the judge, and it goes for your lawyer too. Unfortunately, I’ve seen a lot of lawyers who are better at speaking than they are at listening – it’s something we should all practice.

I remember once I saw a criminal case where a prisoner had appealed against sentence. He was a young guy – perhaps 23? Anyway, he was representing himself. The Court of Appeal judge rejected his appeal, but said to the guy, “Before you go, is there anything you want to say to me?” The guy had a good old yarn to the judge about things which sucked about prison, including admitting almost tearfully that he really missed his Mum. By the end of it, the prisoner was actually thanking the judge for listening to him – and said, “I know you had to reject my appeal, but thanks for being a top bloke.” Half the time, that’s what people want – someone to listen.

It can give you insight in what it is like to be marginalised or disempowered, and make you want to strive for greater justice and equality in society, but this is not a fait accompli.
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They might even be harsher. Illusions of the virtues of the ghetto are usually not born by those who’ve grown up in one.

Agreed, Adrien – that was what I was arguing with the female boss point – just because someone has suffered adversity, persecution or discrimination doesn’t make them just or fair – sometimes it can make a person far harsher.

And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, “But for the grace of God there go I.”
So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court. And I think it is a tremendous responsibility and it’s a humbling responsibility and it’s one that if confirmed, I will carry out to the best of may abilities.

I think a person is entitled to say that his or her experiences have made him or her more empathetic. I would argue, for example, that having a disability as a kid has made me more empathetic towards others. I totally agree with Thomas J.

But that doesn’t mean that all people who have disabilities are necessarily more just or empathetic than people who don’t have disabilities.

I think I’d support Sotomayor’s comments wholeheartedly if she’d said, “Being a Latina woman has made me understand what it is like to be minority, and I can bring my experience to good use on the bench.”

What I don’t like is the suggestion that a Latina woman “more often than not reach[es] a better conclusion than a white male.” Experience as a minority can make you more empathetic, but not necessarily. It all depends on the individual. What is “a better conclusion” anyway? More empathetic? More legally correct?

Anyway, it was just a silly throw away line IMO, and shouldn’t be taken too seriously. It’s the kind of thing you say when you’re sick of people suggesting that you can’t do it because you’re a minority woman – you lash out and say – hey I’m goddamn BETTER!

“What I don’t like is the suggestion that a Latina woman “more often than not reach[es] a better conclusion than a white male.”

I wouldn’t suggest that. I would suggest that an ultimate court of review that contained a latina woman would be a better source of balanced jurisprudence than if it just had a rack of conservative white straight males.

Actually I’d trust a random sample of final year law students over the US Supreme Court, but I know I’m slipping into my biases.

I wouldn’t suggest that. I would suggest that an ultimate court of review that contained a latina woman would be a better source of balanced jurisprudence than if it just had a rack of conservative white straight males.

ABSOLUTELY, my dear Armagny. It’s all a question of balance. A bench full of conservative straight white males make any litigant feel that justice is being meted out by a particular powerful bloc of individuals in society.

A conclusion from a varied group of people with different perspectives is far more convincing than a conclusion from a group of people who indulge in group think. I really don’t like the politicised way in which judges are chosen for ultimate courts of review (ie, we’ll choose these guys who will push our particular ideological barrow). What about picking someone on the basis of his or her intelligence, integrity and willingness to consider points of view different from his or her own? Grrr.

I think once someone starts selecting judges on the basis of affiliation then everyone’s got to do it because they’ll slip otherwise. I would suppose this started probably with various kinds of alliance nepotism.

Perhaps a flaw in the American system is that the President appoints the people who sit on the SCOTUS. Ours too.

Requiring a conscience vote with at least 60% of both houses supportin?

Might be difficult to achieve. And you get the contrary problem where instead of ideologues being appointed you get people who’re inoffensive. Most outstanding people are offensive at least to somebody.

There is evidence to suggest that those who have “raised consciousness” about certain social issues will be more inclined to see breaches than others. To a man with a hammer … . Very difficult to sort this out because people without experience of discrimination tend to downplay discrimination. Can’t win!

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[…] first nomination to the Supreme Court was not without controversy, either. As I have discussed here, Sonia Sotomayor had expressed views in a speech that as a Latina woman, she made better judgments […]

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